Thursday, November 18, 2010;
THE STUNNING verdict in the first civilian trial of a Guantanamo detainee is an embarrassment for the Obama administration, but it should not deter officials from considering federal court prosecutions for others being held at the U.S. naval base.
Ahmed Khalfan Ghailani was acquitted of 284 of the 285 charges lodged against him for his role in the 1998 bombings of the U.S. embassies in East Africa that killed 224 people, including 12 Americans. Mr. Ghailani, who was indicted in federal court months after the attack and then captured in 2004, was convicted only of conspiracy to destroy U.S. property and buildings. According to the U.S. Attorney's Office in Manhattan, Mr. Ghailani purchased the truck and the tanks of oxygen and acetylene gas used in the suicide bombing of the embassy in Tanzania. Prosecutors also presented evidence that the day before the bombings, Mr. Ghailani used a fake passport and an assumed name to depart Africa on a flight with two al-Qaeda operatives also implicated in the attacks. The presiding judge prohibited the government from calling a witness who claims he sold Mr. Ghailani TNT because the government learned of the witness only after subjecting Mr. Ghailani to what his lawyers say was torture at an overseas CIA prison.
Administration critics say the multiple acquittals prove that a federal court is the wrong venue for such trials. They are right that a trial by its nature is a risky proposition, notwithstanding Attorney General Eric H. Holder Jr.'s brave assertion in 2009 that "failure is not an option." Defense lawyers in this case effectively painted Mr. Ghailani as an unwitting accomplice.
But Mr. Ghailani did not escape responsibility. His conviction carries a mandatory minimum sentence of 20 years, and the judge may impose a life sentence. Moreover, there is no guarantee that a military commission, the preferred alternative of many critics, would have produced a tougher result. Such commissions are not apt to admit statements coerced through torture, so the star witness rejected by a federal judge probably would have been excluded by the military court as well. And in 2008, a military jury rejected the Bush administration's argument that Osama bin Laden's former driver, Salim Ahmed Hamdan, was a hardened al-Qaeda operative, acquitted him of the most serious charges and sentenced him to a mere five months on top of time served.
The fact that a jury sitting in a terrorism case just blocks from Ground Zero declined to rubber-stamp the government's assertions shows not the weakness of the federal court system but one of its principal strengths: independence.
Military commissions are a legitimate option to try accused terrorists, and in rare cases - if the administration would have the courage to seek a legal framework, with judicial oversight - indefinite detention is as well. But the Ghailani verdict provides no sound argument to remove federal courts from the mix.